Workplace Investigations refresher part 10: Procedural fairness – bias

Because workplace investigations are conducted by human beings, bias is an issue that should be considered from the very outset, and constantly monitored. In the final article dealing with procedural fairness in workplace investigations, we look at, arguably, the most important issue of them all.

What is bias?

Bias is the inclination or prejudice for or against one person or group. Usually, this will result in an outcome that is unfair to one party or another.

Bias arises in two forms:

• actual; and
• apparent (or perceived).

In an investigation context, actual bias occurs where there is evidence that a decision maker acted with prejudice, or had an inclination for or against an individual involved in that investigation. Often, it can be difficult to prove the existence of actual bias in an investigation, as it requires the presence of direct evidence proving a decision maker was actually biased in an investigation, and generally speaking, in the absence of a smoking gun, investigators affected by bias are reluctant to admit that fact.

Conversely, apparent bias can be easier to prove as doing so does not require direct evidence. Rather, it involves an objective assessment of the state of mind of the decision maker. The High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 set out the test as:

"whether a fair-minded lay observer might reasonably apprehend that the [decision maker] might not bring an impartial mind to the resolution of the question the judge is required to decide.

In other words, for apparent bias to be proved, the decision maker does not in fact have to be affected by bias. Rather, it is sufficient to prove that the circumstances are such that their decision making could have been affected by bias. If this can be proved, bias will be established. Since the Ebner decision, the High Court has expanded on the test to distil the following three-step test to determine the presence of apprehended bias:

• identify what factor might lead the decision-maker to decide a case other than on its legal and factual merits;
• articulate how that factor might have led the decision-maker to deviate from deciding the case on its merits; and
• assess whether the fair minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred.

The case law

When an individual is not satisfied with the outcome of a workplace investigation, often a claim of bias is put forward in an attempt to discredit its findings. As such, there are a number of cases that act as guidance on what to do and what not to do to minimise the risk of a successful bias argument being run.

Choose your words carefully – Lohse v Arthur (2009) 180 FCR 334

This case is a cautionary tale for investigators to be mindful of the language they employ when conducting their investigations. In this case, Mr Lohse was an employee in the APS who was subject to an investigation over allegations of inappropriate conduct towards his colleagues. The respondent, Mr Arthur was appointed to investigate these allegations and after conducting his inquiries, he found them to be established, leading to Mr Lohse being demoted one classification level.

In challenging this decision, Mr Lohse argued, amongst other things, that Mr Arthur had failed to bring an open mind to his role such that it led to bias being present. In coming to this conclusion, Justice Graham referred to the following:

• Mr Arthur stated in response to a witness's evidence that she felt intimidated by Mr Lohse's conduct, Mr Arthur said "yes, I can understand that", which suggested that he accepted the premise upon which the intimidation was based;
• when the same witness described a comment made by Mr Lohse "disgusted" her, Mr Arthur said "I'm not doubting that" which again suggests that he accepts the premise on which the statement was made; and
• Mr Arthur also said "yes I agree" in response to witness evidence about the appropriateness of Mr Lohse's behaviour, which suggested that Mr Arthur's mind was not open.

Be transparent – Batchem v Water Corporation [2016] FWC 9088

This case arose in the context of an unfair dismissal application. Mr Batchem was dismissed following an investigation into issues of data manipulation and working hours, as well as his dishonesty during the investigation.

In successfully arguing to the FWC that his dismissal was unfair, Mr Batchem pointed to the fact that his supervisor, who made the decision to terminate his employment had an informal discussion with a witness without affording him the same opportunity. Further, the FWC found that the decision maker had formed assumptions about the allegations based on their "preconceived views" of Mr Batchem, which Commissioner Cribb concluded "suggest a bias by the decision maker".

There has to be a link – Coutts v Close [2014] FCA 141

A case that we identified in part 7 of our refresher series is also relevant to bias. In this case, an AFP sergeant had his employment terminated on the basis of found breaches of the AFP Code of Conduct. In challenging this decision, Mr Coutts argued this decision lacked procedural fairness on a number of grounds.

Relevant to bias was the fact that Assistant Commissioner Close made the operative decision to terminate Mr Coutts' employment. In his claim, Mr Coutts gave evidence that AC Close had previously been involved in various decisions relating to his employment. Accordingly, it was Mr Coutts' claim that due to this previous history, AC Close, in exercising her role as decision maker in this investigation, would be affected by apprehended bias.

In response to this, it was submitted by AC Close that:

• Mr Coutts waived any claim of apprehended bias by failing to adequately raise it during the investigation; and
• in the alternative, the evidence falls well short of what is required to prove apprehended bias, and that it fails to create a logical connection between the decision to terminate his employment, and the previous "minor events" in which the AC Close was involved in.

In dismissing the argument that Mr Coutts waived any claim of bias, Justice Griffiths found that Mr Coutts raised this as an issue with his the Chief Police Officer who discussed it with AC Close, and that in a chain of command organisation such as the AFP, such actions were sufficient to raise this as an issue.

However, the Court ultimately dismissed Mr Coutts' claim of bias because in its view, a fair minded lay observer could not find AC Close would not bring an impartial mind to the investigation where:

• the incidents in question happened some time ago;
• none of the incidents were of "serious magnitude as to give rise to a reasonable apprehension"; and
• Mr Coutts failed to evidence a logical link between those incidents and any concern to the investigation in question.

How can it be avoided? Practical tips

Bias is an issue that requires ongoing assessment throughout an investigation. However, with good planning, it need not affect the integrity of the findings it produces. Here are our tips:

Implement policies and procedures to assist staff to address bias and combine with training

Addressing bias can be contained in a broader conflict of interest policy and should include information:

However, the effectiveness of any such policy is also dependant on how well employees understand it. As such, training should also be conducted that addresses:

• on the difference between an actual and apparent conflict of interest
• to assist employees identify when a conflict (including bias) exists; and
• on steps are required to be taken when an employee identifies a conflict is present, which should include the lodgement of a formal conflict of interest declaration form, which is placed on their personnel file.

However, the effectiveness of any such policy is also dependant on how well employees understand it. As such, training should also be conducted that addresses:

• what a conflict of interest is;
• common circumstances in which they arise (eg. in investigations);
• how to address a conflict of interest; and
• what to do if the nature of the conflict changes over time.

Clayton Utz regularly undertakes this training for employers.

Select an impartial investigator

It may sound obvious, but it is the most guaranteed way to ensure bias is not an issue in an investigation. The availability of an impartial investigator will depend on the circumstances of the workplace, including the size and resources of the enterprise.

For example, it is generally easy for a large government agency with thousands of employees to find an investigator suitably distanced from the individuals relevant to an investigation. However, the same cannot be said for a small business who may rely on one dedicated human resources employee (if any).

In cases where an impartial investigator is unable to be appointed internally, or a matter involves sensitive subjects, employers may wish to consider the utility in appointing an independent external investigator to conduct the relevant inquiries. The benefit to this approach is obvious: by bringing in someone from outside the organisation, any argument of bias is largely defeated because that person has no involvement or interaction with any relevant employee.

Follow the steps we have identified in our investigations series

Often, the failure to follow one of the other procedural fairness elements leads to a "catch all" argument of bias being made. By ensuring an investigation does not fall foul of the matters we have identified previously, an employer will be well placed to rebut any claim of bias.

Related Insights

• Workplace investigations refresher 01: Where to begin
• Workplace investigations refresher part 2: Following your framework
• Workplace investigations refresher part 3: legal professional privilege and workplace investigation reports
• Workplace investigations refresher part 4: Waiving LPP over workplace investigation reports
• Workplace investigations refresher part 5: Maintaining legal professional privilege over workplace investigation reports
• Workplace investigations refresher part 6: drafting allegations
• Workplace investigations refresher part 7: Procedural fairness: putting allegations to a person for response
• Workplace investigations refresher part 8: Participants in workplace investigations – witnesses
• Workplace investigations refresher part 9: Procedural fairness – providing an opportunity to respond